Mercer v. State
| Decision Date | 08 December 1986 |
| Citation | 125 A.D.2d 376,509 N.Y.S.2d 103 |
| Parties | Eddie MERCER, Respondent, v. The STATE of New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert Abrams, Atty. Gen., Albany (Peter J. Dooley and Michael S. Buskus, of counsel), for appellant.
David A. Lenihan, Albany, for respondent.
Before MOLLEN, P.J., and BRACKEN, BROWN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In a claim to recover damages as the result of an alleged sexual assault by a physician employed by the New York State Department of Correctional Services, the defendant State of New York appeals from an order of the Court of Claims (Lengyel, J.), dated October 29, 1985, which denied its motion to dismiss the claim.
ORDERED that the order is affirmed, with costs.
The claimant, an inmate at Mid-Orange Correctional Facility in Warwick, New York, alleges that a physician employed by the State at said facility sexually abused him while pretending to be giving him a medical examination to diagnose the cause of stomach pains. Subsequent to the alleged assault upon the claimant, the State dismissed the physician in question from his employment, stating as a reason the physician's having engaged in improper homosexual activities with three inmates, including the claimant.
Stating that he had suffered psychological injuries, the claimant charged the State with negligence in the hiring of the physician and in failing to supervise him properly, including not responding to complaints about him made to prison authorities by other inmates. The State sought dismissal of the claim on the ground that there were no triable issues of fact bearing on whether the State was negligent in hiring the physician and in failing to supervise him properly. The State also sought dismissal of the claim on the ground that it could not be held liable under the theory of respondeat superior for intentional misconduct of the physician not within the scope of his employment. The Court of Claims denied the State's motion in its entirety.
The State contends that there is no evidence to show that it deviated from its customary hiring procedures in employing its dismissed physician. Assuming, arguendo, that this is the case, a triable issue has been raised as to the adequacy of its customary procedures. The extent of an employer's duty to investigate those who apply to it for employment is subject to considerations of public policy (see, Stevens v. Lankard, 31 A.D.2d 602, 297 N.Y.S.2d 686,...
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